Filed 4/4/17 P. v. Bray CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

VEGAS BATALLYA BRAY,

Defendant and Appellant.
D069580



(Super. Ct. No. SCS260209)

APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard III, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Vegas Batallya Bray appeals from a judgment of conviction entered after a jury convicted her of first degree murder in the death of her ex-boyfriend. On appeal, Bray contends that the trial court's jury instruction on the lesser included offense of involuntary manslaughter was incomplete, in that it omitted the elements of the offense. We conclude that even if we presume that the trial court's instruction was erroneous, Bray is unable to demonstrate that she suffered prejudice as a result of the claimed error. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
At approximately 3:00 p.m. on October 16, 2012, Bray arrived at the apartment complex where her ex-boyfriend, Victor Saucedo, lived. Approximately 10 to 20 minutes later, a witness heard several gunshots. Sometime near the time that the witness heard the shots, Bray called her brother, Santiago R., told him that she loved him, and hung up. Santiago felt that something was wrong and repeatedly tried calling her back. On Santiago's third attempt, Bray answered. When Santiago asked her what was wrong, Bray responded, "I think I shot Victor." Soon thereafter, Bray said, "I shot him. I killed him. I think I killed him. He is dead." Bray told Santiago that she was going to kill herself. Santiago managed to talk her out of doing that, and persuaded her to call 911 to report what had happened. 911 dispatch received Bray's call at approximately 3:45 that afternoon. Bray told the dispatcher that Saucedo had been shot. When asked who shot him, she said, "I don't know. I'm not sure what happened."
Saucedo was dead when officers arrived at the scene, and the medical examiner's office was called. Saucedo had sustained nine gunshot wounds to his body—three to his face, one to his right shoulder, one to his right chest, one to his right back, one to his right hand, one to his left shoulder, one to his lower chest, and one to his abdomen. Multiple shots had been fired at close range, and several of the wounds were or could have been independently fatal. Bray had used hollow point ammunition, which "is designed to sort of open up and flatten when it enters the body." In opening up and flattening when entering the body, hollow point ammunition "transfers more of its energy in terms of its speed to the body" than standard ammunition.
Bray told detectives that she blacked out while driving on the freeway on her way to pick up a friend and go to a gym. She explained that when she woke up, she was lying on the floor, and approximately a foot or two away from her was Saucedo's body. She saw her gun, ammunition, and purse nearby. Bray's ears were ringing. Bray told detectives that she called 911, but did not explain to the dispatcher about "waking up" because she "didn't know how to explain any of that to them."
Evidence presented at trial provided context and background regarding Bray and Saucedo's relationship in the time period leading up to Saucedo's killing. Bray and Saucedo had developed a romantic relationship in 2011. They broke up near the end of that year, but continued a friendship. Between the time of their breakup and Saucedo's killing, Bray had been prone to bouts of jealousy and behaved inappropriately toward Saucedo. For example, Bray slashed the tires on Saucedo's car on two occasions, keyed his car, threw a jar of jelly through Saucedo's living room window, and threw paint and eggs at Saucedo's front door. Saucedo moved to a different unit in his apartment complex after these events occurred. Bray slashed Saucedo's tires another time in June 2012. In August and September 2012, Bray spoke with the property manager at the apartment complex where Saucedo lived and indicated that she was looking to rent an apartment in that complex.
In the months leading up to Saucedo's death, Bray recorded statements that suggested she was having violent thoughts directed at Saucedo. In May 2012, Bray created a file on her computer titled "bucket list." Included on her "list" were plans to "buy a gun," "find Victor Saucedo," "kill him," and then kill herself. On August 3, 2012, Bray wrote a memo on her cell phone regarding Saucedo in which she complained about Saucedo cheating on her. Bray ended the memo with the following: " 'He was so full of shit and lies. I said "was" 'cause this dumbass no longer exists. Goodbye, Victor C. Saucedo. U stupid ass fuckin' bitch.' " On October 5, 2012, Bray wrote another memo on her cell phone: " 'Just say that she was obsessed with killing him.' "
On October 15, 2012, the night before Saucedo was killed, Bray drove to Saucedo's apartment. Bray and Saucedo had sex. The next morning, Bray asked Saucedo if he wanted to have breakfast with her, but he declined. Bray was "shocked." She was angry with Saucedo and with herself, and felt "ashamed." Bray then spent some time with her brother, Santiago, at the DMV. Bray seemed normal to Santiago at the time. Just after 3:00 p.m. on October 16, 2012, Bray was seen walking through Saucedo's apartment complex. Approximately 10 to 20 minutes later, shots were heard in the apartment complex.
At trial, Bray's defense was that she suffered from posttraumatic stress disorder and other mental disorders that caused her to be in "an altered state of consciousness" on the day she shot Saucedo. A psychiatrist who testified on Bray's behalf explained her state of mind at the time of the shooting as involving "a disassociated state, a post traumatic state in which she was not in control of her actions. She was in control of some of her actions obviously. She was able to drive and do routine things, but this was in an automatic way, not a conscious choice way that she was, so to speak, on auto pilot in a rage state."
B. Procedural background
A jury convicted Bray of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and found true the allegation that she had personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)).
The trial court sentenced Bray to an aggregate indeterminate term of 50 years to life in state prison. Bray filed a timely notice of appeal.
III.
DISCUSSION
Bray contends that the trial court committed reversible error when it instructed the jury with an involuntary manslaughter instruction that "omitted all of the elements of the crime."
Involuntary manslaughter is generally a lesser offense necessarily included within the offense of murder. (People v. Prettyman (1996) 14 Cal.4th 248, 274.) A trial court must instruct the jury on a lesser-included offense on its own motion when the evidence warrants it; the instruction is not required if there is no evidence that the offense was less than that charged. (Ibid.; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) According to Bray, she was entitled to an instruction on involuntary manslaughter based on her defense that she was not completely conscious at the time of the shooting, due to being in a dissociative mental state.
Initially, the trial court was disinclined to instruct the jury on involuntary manslaughter. However, after reading additional authorities presented by the defense, the court concluded that an involuntary manslaughter instruction would be appropriate. The trial court indicated that it understood the law to provide a complete defense to any crime for an individual who is determined to have been unconscious at the time of committing an act that resulted in a death. The court further understood that for a state of consciousness that does not rise to the level of complete unconsciousness, but in which an individual's altered state prevents the individual from forming an intent to kill, that individual "[is] still responsible for [his or her] actions." The trial court agreed that there are situations in which a defendant may lack the requisite specific intent for murder, but could still be found guilty of involuntary manslaughter. Ultimately, the trial court crafted its own instruction with respect to involuntary manslaughter, as follows:
"When a person commits an unlawful killing but does not intend to kill, then the crime is involuntary manslaughter.

"If the jury finds beyond a reasonable doubt that the defendant's mental state had not lapsed into unconsciousness, but finds beyond a reasonable doubt that, at the time of the killing, the defendant suffered from a mental disorder that rendered the defendant incapable of entertaining either malice aforethought or an intent to kill, the offense can be no greater than involuntary manslaughter."


The trial court's instruction omitted significant portions of CALCRIM No. 580, the standard instruction on involuntary manslaughter, including the following:
"When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

"The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

"The defendant committed involuntary manslaughter if:

"1. The defendant committed a crime;

"2. The defendant committed the crime with criminal negligence;
AND

"3. The defendant's acts caused the death of another person.

"[¶] . . . [¶]

"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

"1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
AND

"2. A reasonable person would have known that acting in that way would create such a risk.

"In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." (CALCRIM No. 580.)

Bray contends that the trial court erred in instructing the jury with respect to involuntary manslaughter by omitting those portions of CALCRIM No. 580 set forth immediately above, particularly the portion that sets forth the elements of that offense and explains the meaning of "criminal negligence." We need not determine whether the trial court's modified instruction regarding involuntary manslaughter was erroneous or not, however, because even if we presume that it was erroneous, Bray cannot demonstrate that she suffered prejudice as a result of the instruction.
An erroneous failure to give a lesser-included-offense instruction results in reversal of a conviction only if the error is prejudicial. (People v. Blakeley (2000) 23 Cal.4th 82, 93.) As Bray acknowledges, claims of instructional error with respect to a lesser included offense are reviewed under the harmless-error-review standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Rogers (2006) 39 Cal.4th 826, 867–868 (Rogers).) Under this standard, reversal is required only if it is reasonably probable that the jury would have returned a different verdict absent the error or errors about which the defendant is complaining. (Ibid.)
It is not reasonably probable that the jury would have returned a different verdict absent the claimed instructional error with respect to involuntary manslaughter. The jury was given the option of convicting Bray of first degree murder, second degree murder, voluntary manslaughter based on an unlawful killing committed in the heat of passion, and involuntary manslaughter. The jury convicted Bray of first degree murder, finding that she premeditated the killing and acted with express malice. In doing so, the jury necessarily rejected the lesser included offenses of implied malice second degree murder and heat-of-passion voluntary manslaughter, both of which require higher degrees of culpability than does the offense of involuntary manslaughter. In such a circumstance, there is no reasonable probability that, if the jury been instructed on involuntary manslaughter in the manner in which Bray asserts it should have been, the jury would have chosen to convict her of that offense. (See Rogers, supra, 39 Cal.4th at p. 884 [defendant's first degree murder conviction rendered harmless defendant's claim of error regarding instruction on lesser included offense of involuntary manslaughter]; People v. Cook (2006) 39 Cal.4th 566, 597 [same].)
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.